Conservatorships and Guardianships in CaliforniaEstate Planning Attorneys, serving Long Beach, Redondo Beach, and Torrance, CA
You may be faced with a family member or a loved one who has become incapacitated or incompetent. If no estate planning documents are currently in place, the only legal recourse may be to seek the appointment of a conservator (of the person and/or the estate) through the probate court.
A conservatorship is “a court proceeding to appoint a manager for the financial affairs and/or the personal care of one who is either physically or mentally unable to handle either one or both.”
- A conservatorship shifts the responsibility of making financial and personal care decisions from the Conservatee to the Conservator; and
- It imposes significant limitations on the Conservatee’s ability to take actions affecting finances or personal care.
Two Types Of Conservatorships
- Conservatorship of the Estate: The Conservator of the estate has the authority to manage and control the Conservatee’s estate, pay the Conservatee’s debts, collect the Conservatee’s debts, and apply the income from the estate for the maintenance, support and education of the Conservatee.
- Conservatorship of the Person: The Conservator of the person is responsible for the care, custody, and control of the Conservatee. The conservator has the authority to fix the residence of the Conservatee; to consent to medical treatment and to require that the Conservatee receive the appropriate medical treatment.
A Limited Conservatorship applies only to adults with a developmental disability, as defined in California law. The purpose of limited conservatorship is to protect adults with developmental disabilities from harm or exploitation while allowing for the development of maximum self-reliance and independence.
A limited conservatorship is a court-approved, legal relationship between a competent adult (Conservator) and an adult with a developmental disability (Conservatee), which gives the Conservator a defined degree of authority and duty to act on behalf of the Conservatee in making decisions affecting the Conservatee’s life.
The protection is considered “limited” because the Conservator is given authority to make decisions only in areas where the court believes the disabled person needs help. Therefore, the judge can make a separate decision (on a case by case basis) about whether the Conservator will have any of the following seven rights:
- The right to determine where and with whom the Conservatee lives;
- The right to access the Conservatee‘s confidential (educational, medical, etc.) records;
- To give or withhold consent to the Conservatee’s marriage;
- To sign all contracts on behalf of the Conservatee;
- To give or withhold consent to the Conservatee’s medical treatment;
- To control the Conservatee’s social or sexual contacts; and
- To make decisions regarding the Conservatee’s education.
A Guardianship may be necessary when a parent is no longer available to care for their minor child or when the minor child receives an inheritance (i.e. proceeds from a probate estate or a life insurance policy).
You may only become a guardian in California by being appointed by the court. There are two types of guardianships:
- Guardianship of the Person: The Guardian has legal custody and responsibility for the minor, and
- Guardianship of the Estate: The Guardian has the responsibility to manage the minor’s assets.
The guardianship generally lasts until the minor turns 18, unless the court determines that the guardianship is not in the minor’s best interest. You may also petition the court to terminate the guardianship.